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HomeMy WebLinkAboutResolution - 2003-R0114 - Services Agreement - West Texas Municipal Power Agency - 03_05_2003Resolution No. 2003-RO114 March 5, 2003 Item No. 29 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, by and between the City of Lubbock and West Texas Municipal Power Agency, a Services Agreement for the City of Lubbock to provide management and related services for the wholesale power purchases on behalf of WTMPA and provide compensation to City of Lubbock for same and all related documents, and take appropriate action. Said Service Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 5th day of March , 2003. GAL, MAYOR ATTEST: Rebecca Garza City Secretary APPROVED AS TO CONTENT: Matthew L. Made Interim Director of Lubbock Power & Light APPROVED AS TO FORM: c. M. Knight Assistant City Attorney ml/Ccdocs/ServiceAgreementWTMPA.res February 21, 2003 Resolution No. 2003-R0114 March 5, 2003 Item No. 29 SERVICES AGREEMENT THIS AGREEMENT ("the Agreement") by and between WEST TEXAS MUNICIPAL POWER AGENCY, hereinafter referred to as "WTMPA," a municipal corporation and political subdivision of the State of Texas, composed of the Cities of Lubbock, Brownfield, Floydada and Tulia, Texas (hereinafter referred to as "Member Cities"), and the CITY OF LUBBOCK, a municipal corporation and home rule city, hereinafter referred to as "the City." (Collectively, WTMPA and the City may be referred to as the "Parties" or individually as "Party."). WITNESSETH: WHEREAS, WTMPA currently employs no full-time staff, and it has determined that it will be more economical by contract to delegate to a central operating entity certain administrative functions that relate to the operation and management of the wholesale power contracts of WTMPA; and WHEREAS, the City has offered to provide certain administrative services for the administrative operation of WTMPA's wholesale power contracts and WTMPA has determined it to be in the best interests of its Member Cities to accept the City's offer under the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements herein contained, the Parties hereto agree as follows: ARTICLE I General Responsibilities of the City and WTMPA 1.1 Availability of Records. WTMPA hereby agrees to make all of its contracts and records available at all times to the City. 1.2 WTMPA Assistance. WTMPA hereby agrees to provide all requested information and assistance to the City in order to facilitate efforts by the City to perform the services contemplated hereunder in the most economical manner. 1.3 Routine Services. The City shall furnish all material, equipment, services, supplies, labor and supervision necessary for performing the services contemplated hereunder. 1.4 Insurance. WTMPA shall secure and maintain comprehensive general liability covering all aspects and operations in connection with this Agreement, including without limitation, all aspects, operations and occurrences to which WTMPA has indemnified the City, as provided in Section 7.1 hereof, in amounts and type mutually agreed upon between WTMPA and the City. In the event WTMPA and the City cannot agree on the amounts and type of such insurance, the City shall designate such amount and type, which shall be binding, for all purposes, on WTMPA. 1.5 Personnel. The City shall employ and shall supervise persons required by the City to perform its duties and responsibilities. 1.6 Communications. WTMPA and its Member Cities shall establish communications acceptable to the City necessary to perform and carry out the duties and obligations contemplated hereunder. ARTICLE H General Terms and Conditions 2.1 Scope. This Agreement covers all work or services necessary to administer the wholesale power contracts to which WTMPA is a party and which are in effect and enforceable at the time this agreement is executed and for all wholesale power SERVICES AGREEMENT — WTMPA Page 2 contracts lawfully entered into by WTMPA after this agreement is executed. This shall include, without limitation, the billing, scheduling, and maintenance of books and records associated with and related to any WTMPA wholesale power contract. However, this agreement shall not be construed as to require the City to provide general financial or accounting services for WTMPA or any other services not directly associated with WTMPA's wholesale power contracts. Further, nothing contained herein shall require the City to provide any services related to any WTMPA wholesale power contract to which the City has previously elected not to participate as allowed under the Amended Power Sales Contract between the City and WTMPA, dated April 23, 1998 passed via Resolution No. 5825. 2.2 Supervision. The City shall furnish all supervision, labor, material, and equipment as necessary to perform the described services, except as may be furnished by WTMPA, as approved by and in coordination with the City. 2.3 Independent Contractor. The City is an independent contractor as to all work performed hereunder. The detailed manner and method of performing the work is under the control of the City, WTMPA having interest only in the results obtained. All persons engaged in the performance of said work shall be solely the servants or employees of the City, but WTMPA or its authorized agents shall have the right to such inspection of the work as necessary to ensure compliance by the City with the obligations assumed hereunder. 2.4 Assignment. The City may assign all or part of this Agreement or sublet the same or any part thereof to a qualified contractor, as determined by the City, to perform specific requested duties that fall outside the City's capability without the SERVICES AGREEMENT — WTMPA Page 3 consent of WTMPA. Except as provided otherwise herein, the assignment of this Agreement or the subletting of any work to be performed hereunder shall not relieve the City of its obligations hereunder. 2.5 Applicable Laws. All work shall be performed in compliance with all applicable laws, ordinances or regulations of any governmental authority having jurisdiction. 2.6 Contracting_ Party. Nothing contained in this Agreement shall relieve WTMPA of any of its obligations or duties as a contracting party to its wholesale power contracts. 2.7 Standard of Performance. City shall exercise reasonable care consistent with the type of service being performed under this Agreement, and, where applicable, consistent with Good Utility Practice as defined in Section 8.1 of the Operation Management Agreement between the City and WTMPA dated April 23, 1998. ARTICLE III Billing and Payment 3.1 Billing of WTMPA. WTMPA shall pay the City monthly for all as shown by an invoice listing labor hours, materials, supplies and overhead to perform those services for WTMPA. Overhead costs include the City's reasonable direct and indirect administrative and general charges charged directly or allocated to its duties under this Agreement. In no event will the WTMPA be obligated for overhead costs exceeding five per cent (5%) annually of the total actual costs of performing the services outlined herein. SERVICES AGREEMENT — WTMPA Page 4 3.2 Invoice Submittal. On or before the tenth (loth) day of each month, the authorized City representative shall submit to WTMPA's authorized representative, as designated by WTMPA herein, for review, approval, and payment an invoice in writing covering the previous month's work. The invoice amounts shall reflect the actual cost, as determined by the City, of the services performed which shall be reasonable for the Lubbock area for equivalent services. WTMPA shall pay the City the amounts due on or before the twentieth (20th) day of each month. 3.3 Disputed Charges. In the event WTMPA disputes the charges reflected in an invoice, WTMPA shall, nevertheless, pay the charges in the time required by paragraph 3.2 above. WTMPA shall notify the City within thirty (30) days after paying the invoice of the dispute, and WTMPA and the City shall proceed in good faith to resolve the dispute. If the dispute cannot be resolved, either Party may pursue any remedy in law or in equity. 3.4 Inspection of Supporting Documents. WTMPA, or its agent, upon reasonable notice to the City, may inspect the City's records of accounting supporting invoices delivered to WTMPA at any time during the City's normal business hours, and the City shall fully cooperate with WTMPA to facilitate the inspection. ARTICLE N Term of Agreement 4.1 Term. This Agreement shall remain in full force and effect until either gives notice of termination as provided for herein. Either Party may terminate this Agreement by providing 30 days notice to the other party. However, in no event shall this Agreement extend beyond two (2) years from the Execution Date. SERVICES AGREEMENT — WTMPA Page 5 ARTICLE V Default 5.1 Events of Default. As used in this Article V, "default" shall mean the failure of WTMPA or the City to perform any material obligation in the time and manner required by this Agreement, except where such failure to discharge obligations (other than the payment of money) is the result of Force Maj eure as defined in Article VIII, Section 8.8. 5.2 Notice and Cure. Upon failure of a Party hereto to perform any material obligation required hereunder, the other Party shall give written notice of such default to the Party in default. The Party in default shall have thirty (30) days within which to cure such default, and, if cured within such time, the default specified in such notice shall cease to exist. 5.3 Remedies Cumulative. If a default is not cured as provided in paragraph 5.2 above, the Party not in default may resort to all remedies available at law, equity, contract or otherwise, including recovery of reasonable expenses and reasonable attorneys' fees incurred in connection therewith. ARTICLE VI Notices 6.1 Notice and Authorized Representative. Any notice, request, demand, statement, bill or payment provided for in this Agreement, or any notice which any Party may desire to give to the other, shall be in writing and shall be considered as duly delivered when mailed by registered mail to the post office address of the Parties hereto, as the case may be, as follows: SERVICES AGREEMENT — WTMPA Page 6 If to WTMPA: P.O. Box 5832 Lubbock, T% 79408 Attu: Ty Cooke, Chairman If to the City: Lubbock Power & Light P. O. Box 2000 Lubbock, Texas 79457 Attn: Managing Director of Electric Utilities The individuals listed shall act as Authorized Representatives, as defined in Section 8.11, below, for each party respectively. The Parties may amend the person to receive notices hereunder by providing written notice, as prescribed herein, to the other party designating such new person to receive notice. Such new notice shall be effective thirty (30) days after such notice is provided to the other Party. 6.2 Time of Notice. For purposes of this Agreement, the date on which any notice, request, statement, payment or other communication shall be deemed to have been given, except as provided herein, shall be the date on which it is received by the recipient, provided any such notice, request, statement, payment or other communications transmitted by registered or certified mail, return receipt requested, postage prepaid, shall be deemed to have been given on the third day following the date on which same was deposited in the United States mail, addressed in accordance with this Article VI. Either Party hereto may designate a further or different address to which subsequent notices, requests, statements, payments or other communication shall be sent. SERVICES AGREEMENT - WTMPA Page 7 ARTICLE VII INDEMNIFICATION 7.1 INDEMNITY. WTMPA, TO THE EXTENT PROVIDED BY LAW, SHALL PROTECT, INDEMNIFY AND SAVE THE CITY, ITS ELECTED OFFICIALS, AND ITS EMPLOYEES, ACTING WITHIN THE SCOPE OF THEIR DUTIES AND/OR EMPLOYMENT, HARMLESS AGAINST ANY AND ALL CLAIMS, DEMANDS AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER ARISING IN FAVOR OF ANY PERSON, CORPORATION OR GOVERNMENTAL ENTITY, OR ANY OTHER PARTY OR ENTITY, BECAUSE OF OR GROWING OUT OF, INCIDENT TO, RELATED TO OR RESULTING DIRECTLY OR INDIRECTLY FROM THE OCCURRENCE OF ACTIVITIES OR OMISSION OF ACTIVITIES CONTEMPLATED BY THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, TO SUCH CLAIMS, DEMANDS AND CAUSES OF ACTION CAUSED, BY ANY DEGREE, BY THE NEGLIGENCE OF THE CITY, PROVIDED THE CITY ACTED IN ACCORDANCE WITH GOOD UTILITY PRACTICE AS DEFINED IN SECTION 8.1 OF THE OPERATION MANAGEMENT AGREEMENT BETWEEN THE CITY AND WTMPA DATED APRIL 23, 1998. THIS INDEMNITY DOES NOT APPLY TO INJURIES OR DEATH OF CITY EMPLOYEES ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT. ARTICLE VIII Miscellaneous 8.1 Modification/Amendment. This Agreement may not be modified, varied or amended, except by written agreement signed by both Parties. SERVICES AGREEMENT — WTMPA Page 8 8.2 Assessments. Neither Party shall be responsible or liable for any taxes, fines, penalties or other statutory charges levied or assessed against any other Party. 8.3 Assignment. Subject to the terms hereof and of Section 2.4, above, neither Party hereto shall assign this Agreement or any of its rights or obligations hereunder without the consent in writing of the other Party, said consent to not be unreasonably withheld. 8.4 Laws and Regulations. This Agreement is subject to applicable federal, state and local laws, ordinances, rules and regulations. Nothing herein contained shall be construed as a wavier of any right to question or contest any such law, ordinance, rule, regulation or asserted regulatory jurisdiction. 8.5 Governing Laws and Venue. This Agreement shall be governed by the laws of the State of Texas, and venue for litigation arising out of disputes between the Parties shall lie exclusively in Lubbock County, Texas. 8.6 Waiver. No waiver by either Party of any one or more defaults by the other in the performance of any provisions hereunder shall operate or be construed as a waiver of any future defaults, whether of a like or a different character. 8.7 Governmental Restraint. If at any time prior to and during the period in which this Agreement is in effect, any governmental authority having jurisdiction or control over the Parties to this Agreement or any provision thereof, shall take any action as to the City or WTMPA whereby operation or duties as contemplated hereunder shall be proscribed or subjected to conditions or restraints that in the sole judgment of the City constitutes an undue burden to either Party hereto, the City may terminate this Agreement SERVICES AGREEMENT — WTMPA Page 9 without further liability hereunder other than the liability to discharge obligations incurred prior to the termination hereof 8.8 Force Majeure. Neither Party shall be liable to the other Party for failure to perform its obligations under this Agreement when such failure is attributable solely to Force Majeure. Force Majeure shall mean any cause beyond the reasonable control of either Party, including, without limitation, failure, or imminent threat of failure, of facilities or equipment, flood, freeze, earthquake, storm, fire, lightning, other acts of God, epidemic, war, acts of a public enemy, riot, civil disturbance or disobedience, strike, lockout, work stoppages, other industrial disturbance or dispute, labor or material shortage, sabotage, restraint by court order or other public authority, and action or nonaction by, or failure or inability to obtain the necessary authorizations or approvals from, any governmental agency or authority, which by the exercise of due diligence it could not overcome. Nothing contained herein shall be construed so as to require the Parties to settle any strike, lockout, work stoppage or any industrial disturbance or dispute in which it may be involved, or to seek review of or take an appeal from any administrative or judicial action. Failure of WTMPA to make payments to the City required by this Agreement shall not, in any event, be construed as an event occasioned by Force Majeure. 8.9 Severability. In the event any material term, covenant or condition of this Agreement, or any amendment hereto, or the application of any such term, covenant or condition shall be held invalid, illegal or unenforceable as to any Party or circumstances by any court or regulatory authority having jurisdiction, WTMPA and the City shall conduct good faith negotiations for the purpose of reaching a mutually acceptable written SERVICES AGREEMENT — WTMPA Page 10 agreement to replace the deleted provision(s) with provision(s) that will most nearly accomplish the purpose and intent of the deleted provision(s). 8.10 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be binding upon the permitted successors and assigns of the Parties hereto. 8.11 Survivorship of Obligations. Except as otherwise provided herein, the termination or cancellation of this Agreement shall not discharge any Party from any obligation it owes to the other Party under this Agreement by reason of any transaction, loss, cost, damage, expense or liability that shall occur or arise prior to such termination. Unless provided otherwise, it is the intention of the Parties that any such obligation owed (whether the same shall be known or unknown as of the termination or cancellation of this Agreement) shall survive the termination or cancellation of this Agreement. 8.12 Computation of Time. In computing any period of time prescribed or allowed by this Agreement, excepting the notice provided in Section 6.2, above, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the end of the next business day that is neither a Saturday, Sunday nor a legal holiday. 8.13 Limitation. This Agreement is not intended to and shall not create rights of any character whatsoever in favor of any person, corporation, association or entity other than the Parties to this Agreement and the obligations herein assumed are solely for the use and benefit of the Parties to this Agreement and their permitted successors and or assigns. SERVICES AGREEMENT — WTMPA Page 11 8.14 Section Headings Not to Affect Meaning. The descriptive headings of the various articles and sections of this Agreement have been inserted for convenience of reference only and shall in no way modify or restrict any of the terms and provisions hereof. 8.15 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 8.16 WTMPA's Representative. The City shall be entitled for all purposes relative to this Agreement to rely solely and exclusively on the statements and representations of the person identified in Section 6.1, above, as being the WTMPA's Authorized Representative (herein so called). WTMPA may at any time appoint a new representative by thirty (30) days prior written notice to the City to such effect. SERVICES AGREEMENT — WTMPA Page 12 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on this 23rd day of April , 2003, (the "Execution Date"). CITY OF LUBBOCK: WEST TEXAS MUl I�CIPAL POWER AGENCY: [ro4gau Mayor Chairmant $oard of Directors ATTEST: ATTEST: Reb cca Garza, City Secretary Secretary APPROVED AS TO CONTENT: �, rr _ MattKew L. Wade Interim Director of Electric Utilities APPROVED AS TO F Richard K. er Natural Resources Attorney ml/cityatt/matt/lp&12/WTMPA/professional services agmt March 5, 2003 AS TO FORM: ,<—/ !21 4-1-� rOhn Davidson Attorney for WTMPA SERVICES AGREEMENT — WTMPA Page 13